1.Challenge
in this appeal is to the judgment of a Division Bench of the Bombay High Court
directing acquittal of the respondents who were convicted for offence
punishable under Section 302 read with Section 34 of the Indian Penal Code,
1860 (in short the `IPC') and sentenced to suffer capital punishment so far as
respondents 1 and 2, namely, Prakash and Ramu are concerned. Accused No.3-Shiva
was convicted for the aforesaid offence but was sentenced to suffer
imprisonment for life. All the three accused persons were also convicted for
offence punishable under Section 506 read with Section 34 IPC. No separate
sentence was imposed.

2.Prosecution
version as unfolded during trial is as follows:

Jaitubai is the
sister of respondent Nos.1 and 2 and niece of respondent No.3. Jaitubai was
married to Madhukar (hereinafter referred to as the deceased) long back.
Jaitubai had a son Alpesh (PW6) and daughter Hema (PW5). Alpesh and Hema are
major. All of them are residents of Rayagaon (Patilfali), Taluka Nawapur,
District Nandurbar.

Deceased Madhukar
brought Ramabai, a married woman and kept her in his house. On 15.7.2001, first
husband of Ramabai, alongwith 15 to 20 persons came to Madhukar. There is a
custom prevailing in their community, which is commonly known as ZAGDA system.
As per this custom compensation is required to be paid to former husband.
Pursuant to ZAGDA system, Madhukar paid Rs.5,051/- to the former husband of
Ramabai. Thereafter Madhukar was allowed to marry Ramabai. Jaitubai and Ramabai
stayed with Madhukar for a period of 15 days.

2 On account of
marriage with Ramabai, the married life of Jaitubai was disturbed. Accused nos.
1 to 3 were not happy over this affair. They were shocked to know that their
brother-in-law Madhukar married Ramabai and kept her in the house which
adversely affected the married life of Jaitubai. Accused became furious and
decided to teach a lesson to Madhukar.

The incident occurred
on 16.7.2001 at about 6.30 p.m. at a close proximity of the house of deceased
Madhukar. Madhukar gave alarm to the effect "MARLE, MARLE". On hearing
the alarm of Madhukar, Reenabai (PW 3), sister of Madhukar, Gemji (PW 4),
brother of Madhukar, daughter Hemabai (PW 5) and son Alpesh (PW 6) immediately
arrived on the spot in order to see what had happened to Madhukar. Surtan (PW
7), Gulabsingh (PW 8) and other persons from neighbourhood also arrived on the
spot after having heard the alarm of Madhukar. Accused Prakash went inside the
house and brought two axes. He retained one axe with him and handed over
another axe to his brother Ramu. Accused no.3 Shiva caught the legs of Madhukar
by means of rope. Accused no.l cut the left hand of Madhukar.

He also cut right
foot of Madhukar. Accused no.2 inflicted axe blows on the right eye-brow and
near the left ear of Madhukar. The blow was given with so much force that the
blade of the axe stuck into the head of Madhukar and handle of the axe was
broken. Accused no.2 brought knife from the house and inflicted blows on the
back of Madhukar by means of knife. Reenabai (PW 3) tried to rescue her brother
Madhukar, however, because of threats administered by the accused, she did not
dare to rescue her brother Madhukar. In the presence of dear ones, Madhukar was
brutally assaulted.

His organs were
severed by means of axes. But the dear ones and close ones could not offer any
kind of help to Madhukar. After the brutal assault on Madhukar, accused nos. 1
to 3 disappeared from the scene of offence.

Alpesh (PW-6)
narrated the entire incident to him. Police Patil Shamji (PW 11) went to
Navapur Police Station on the bike belonging to Sarpanch and disclosed the
occurrence to the Police. Reenabai (PW3) lodged FIR (Exh.14) at 10.30 p.m. On
the basis of FIR (Exh. 14) Crime No. 55/2001 came to be registered. P.1. Pradip
Sonawane (PW18) carried out further investigation of the crime and, after
completion of the investigation, sent up the charge sheet against the accused
nos.1 to 3. Learned Judicial Magistrate, First Class, Navapur, District
Nandurbar, committed the accused nos.1 to 3 to the Court of Sessions to stand
their trial.

Since the accused
persons pleaded innocence trial was held. As noted above, the trial Court found
the accused persons guilty and death sentence in respect of A-1 and A-2 and
life imprisonment to A-3 was awarded. Three witnesses were stated to have
witnessed the occurrence. They are PWs 3, 4 and 6. The trial Court found their
evidence to be adequate and accordingly recorded the conviction and imposed
sentences. The High Court directed acquittal primarily on the ground that PW-3
did not speak about the presence of Gemji (PW-4) and there is doubt about the
place of recording the first information report and delay in lodging it. PW-3
did not speak about the assault by A-2 with knife. Only PW-6 spoke about it. No
overt act was attributed by PW-6 to A-3. PW-4 did not say that the axe was
fixed on the head. The evidence of PW-2 was full of contradictions as there was
discrepancy about the recovery.

3.Learned
counsel for the appellant-State submitted that the High Court has lost sight of
several important factors and attached undue importance to minor discrepancies
which are normal.

4.Learned
counsel for the respondents on the other hand supported the judgment of the
High Court.

5.It
is to be noted that PW-3 is the sister of the deceased. There was practically
no cross examination on the assault part. So far as fixing of the axe on the
head is concerned, unnecessary importance appear to have been attached to the
same. As a matter of fact the conclusion of the High Court is erroneous because
PW-4 in his evidence has categorically stated that the deceased was having
injury on his body due to assault by means of axes.

One axe was found
inserted in the bone of head near the left ear. The handle of that axe was in a
broken condition. According to the evidence the axe was inserted near about 4
to 5 inches in the head. Thereafter, all the three accused persons ran way from
the spot. The motive indicated was that the deceased was having a illicit
relationship with another lady and, therefore, the family members of the wife
were upset. The High Court has come to an absurd conclusion that the eye
witnesses PWs 3 and 6 gave account of 4 to 5 external injuries but the
witnesses did not utter a single word about remaining 15 injuries. The High
Court came to the conclusion that if at all these two witnesses witnessed the
incident from a short distance then it was not explained as to why they were
not able to account for the remaining injuries which were found on the body of
the deceased. A witness who witnesses an attack on another by three persons
armed is not supposed to go on counting number of assaults on the parts of the
body where the injuries were inflicted. They had categorically stated about the
external injuries 1, 4, 8, 14 and 18. It is noticed that PWs 3 and 4 came
running after hearing shout of the deceased. So it was possible that they had
not noticed the injuries which were earlier sustained due to assaults. They
appeared at the spot when the assault was continuing. As a matter of fact, in
his cross examination PW-4 had stated that on hearing shout of the deceased he
rushed towards him and reached there within a short time. When he reached at
the spot of incident, at that time the deceased was lying on the ground having
injuries on his person. As noted above, there is practically no cross
examination of any of the eye witnesses i.e. PWs 3, 4 and 6 on the assault part.

6.So
far as the delay in lodging the First Information Report is concerned, it has
been accepted that the informant went to the wrong police station and when he
was directed to go to Navapur Police Station, he went there and lodged the FIR.
That clearly explains the delay. In the ultimate analysis, High Court was not
justified in directing acquittal of A1 and A2.

However, so far as
A-3 is concerned, the High Court has indicated sufficient reasons for holding
him not guilty. Same needs no interference. But the reasons indicated for
directing acquittal of A-1 and A-2 are not justified.

We, therefore, set
aside the judgment of High Court so far as their acquittal is concerned. But
considering the facts of the case, it is apparent that the accused persons were
annoyed with the deceased because of his having illicit relationship with
another lady while his wife was alive. The case does not fall to the rarest of
rare category. The appropriate sentence would be life imprisonment. The State's
appeal is allowed to the extent indicated above. Respondents 1 and 2 are
directed to surrender to custody forthwith to serve the remainder of sentence.